Supreme Court Votes 7-2 to Allow Lethal Injection

April 16, 2008 at 12:00 AM EST

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The Supreme Court voted Wednesday to uphold Kentucky's use of lethal injection, allowing the continuation of executions on hold since September. The court also heard arguments on the legality of the death penalty for child rapists. Marcia Coyle discusses the cases.

TRANSCRIPT

JUDY WOODRUFF: One major decision and one important argument at the Supreme Court today, both involving the death penalty. Here to walk us through it all is NewsHour regular Marcia Coyle of the National Law Journal.

Marcia, thank you for being here again.

MARCIA COYLE, National Law Journal: My pleasure, Judy.

JUDY WOODRUFF: Well, in a grim sense, this really was death penalty day at the Supreme Court.

MARCIA COYLE: Yes.

JUDY WOODRUFF: First of all, walk us through the ruling on the death penalty by lethal injection.

MARCIA COYLE: This was a very closely watched case, because the federal government and approximately 36 states use a three-drug protocol to implement lethal-injection executions.

The case was brought by two death row inmates from the state of Kentucky who challenged this three-drug protocol as violating the Eighth Amendment’s ban on cruel and unusual punishment.

They argued that Kentucky did not have proper safeguards in place to ensure that, when the drugs were administered, there was — the risk of pain was minimized.

They said, if the first drug, which induced unconsciousness, was not properly administered, it would leave a death row inmate conscious and paralyzed after the second drug was administered, which induces paralysis.

And, finally, that inmate would be paralyzed, conscious, and in extraordinary pain when the third drug was administered, which induces cardiac arrest and death.

No clear majority reasoning

JUDY WOODRUFF: So now the justices split 7-2 and upheld this three-drug protocol, but the opinions were what's so interesting in all this.

MARCIA COYLE: The justices upheld the three-drug protocol, but they could not agree as a majority of five on the reason why.

The three judges -- the chief justice, Justice Breyer and Justice Alito -- led the court to say that, in judging or assessing a method of execution as to whether it violates the Eighth Amendment, you have to look at whether it presents a substantial risk of serious harm.

That was a rejection of the standard that the inmates in this case were seeking; they wanted something lower, in which you had to show there was an unnecessary risk of serious pain or harm.

Two of the justices who agreed to uphold the protocol, Justices Scalia and Thomas, they said that they felt the history of the Eighth Amendment, the practice at the time, early commentaries, showed that a method of execution was unconstitutional only if it was intentionally designed to inflict pain. And that clearly wasn't the case with the Kentucky protocol here.

JUDY WOODRUFF: So what are the ramifications of this that you have? You have the majority opinion, but you've got this disagreement over what the standard should be.

MARCIA COYLE: Well, I think initially the impact will be as we saw with the state of Virginia. Now that the three-drug protocol has been upheld, the sort of de facto moratorium on executions that has been in place since the court agreed to decide this issue will end. And we probably will see executions go forward.

But the larger question, one that Justice Stevens thought might be answered by this case, will litigation challenging lethal injection stop if we uphold this three-drug protocol? The justices themselves disagreed on it.

Justice Stevens said, no, I don't think it will, and I think it's time this country seriously looks at the costs and benefits of the death penalty. He also suggested for the first time that he would strike down the death penalty if that issue came before him.

Justice Alito said, if the standard that we announce today is properly understood and implemented, it will stop litigation, but we won't know.

JUDY WOODRUFF: So an unusual split or set of splits among the justices?

MARCIA COYLE: Yes, very unusual.

Defining death penalty crimes

JUDY WOODRUFF: Now, next the argument that the justices heard today over whether the death sentence can be imposed when there's been a rape of someone, a child under the age of 12, 12 and under.

MARCIA COYLE: That's true. Yes. This is also a fascinating case.

The court in recent years has been removing from the death penalty certain categories of offenders, such as the mentally retarded, juveniles. But in this case, we're looking at an expansion of the death penalty to those who commit rapes of children.

This case was brought by one of the only two inmates on death row facing the death penalty for child rape. It's a challenge to the Louisiana law that imposes the death penalty.

The argument today focused on several areas, one very important. The last time the Supreme Court faced whether the death penalty was constitutional for a crime other than murder was in 1977 involving the rape of an adult woman.

The inmates here argue that case set forth a standard that the death penalty is reserved for the serious, most heinous crimes. The taking of a life is that serious, most heinous crime, as horrible as rape is.

Louisiana argues that case stands just for the rape of an adult woman and states are free to enact laws imposing the death penalty for the rape of a child.

JUDY WOODRUFF: And what could you tell from the questions that the justices were asking?

MARCIA COYLE: The court seemed to feel that the 1977 ruling involving rape of an adult woman and the death penalty really wasn't clear whether it was limited just to rape of adult women or it did cover the waterfront of crimes that were not murder, so that's one issue that they have to address.

If that case does not cover or does not answer the question in this case, they will look at a fallback argument by the Louisiana inmate, and that is there's a consensus in the nation against using the death penalty for rape of a child, and also this Louisiana law doesn't narrow who can be eligible for the death penalty when they rape a child.

Just like with murder, we don't impose the death penalty on all murders. We limit to the most serious and heinous. And the court seemed interested in that argument, whether this law was narrowed properly.

'Opening the door' to death penalty

JUDY WOODRUFF: And in terms of who asked which questions, did you get a sense of the thinking of these justices?

MARCIA COYLE: Everybody watches Justice Kennedy in these cases, because they so often are 5-4 decisions or closely divided decisions. He didn't ask many questions today, but he did focus on, how do you narrow the class of who's eligible for the death penalty for child rape? You know, what do you do?

There are some states, a handful, that narrow it by saying only those who are repeat offenders, who have prior convictions for raping a child, are eligible for the death penalty.

Justice Breyer worried, if we open the door to this crime, there are lots of serious, heinous crimes, crimes that involve horrible things. Are we going to see the states imposing the death penalty for all of these crimes?

So I think they are interested in that issue of whether this law is too broad. And there are other issues; it's a very complex case.

This was a day that really showed how difficult it is for courts and states to implement the death penalty.

JUDY WOODRUFF: And wrestling both with the ruling and with the discussion, the hearing of these arguments. Marcia Coyle of the National Law Journal, thank you.

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